Pursuant to the provisions of the collective bargaining
agreement between the parties, Brown County Mental Health Center
Registered Nurses, Local 1901-D, AFSCME (hereinafter referred to as
the Union) and Brown County (hereinafter referred to as the County)
requested that the Wisconsin Employment Relations Commission
designate Daniel Nielsen to serve as arbitrator of a dispute
regarding the discharge of Timothy Lang. The undersigned was so
assigned. A hearing was held on May 24, May 25 and June 6, 2000,
at the Brown County Mental Health Center in Green Bay, Wisconsin,
at which time the parties were afforded the full opportunity to
present such testimony, exhibits, other evidence and arguments as
were relevant to the dispute. Transcripts of the hearing were
prepared, the last of which was received by the undersigned on June
15th. The parties submitted post hearing briefs and reply briefs,
the last of which was received on October 2, 2000, whereupon the
record was closed.

6194

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Now, having considered the testimony, exhibits, other
evidence, contract language, arguments of the parties and the
record as a whole, the undersigned makes the following Award.

To maximize the ability of the parties we serve to utilize the
Internet and computer software to research decisions and
arbitration awards issued by the Commission and its staff, footnote
text is found in the body of this decision.

ISSUES

The parties agree that the issues before the Arbitrator are:

1. Did the County have just cause to
terminate the
Grievant?

2. If not, what is the appropriate
remedy?

RELEVANT CONTRACT
LANGUAGE

The collective bargaining agreement provides in Articles 1 and
24, that employees may be discharged for just cause. Additionally,
Article 1 reserves to management the right to make and enforce
reasonable work rules, and to manage the facility and the work
force.

BACKGROUND

The Employer provides general governmental services to the
people of Brown County, Wisconsin. Among these services is the
operation of a mental health center. The Union is the exclusive
bargaining representative for the Center's staff of registered
nurses. The Grievant, Timothy Lang, was employed as an RN at the
Center from June 22, 1999, until his discharge on March 17, 2000.
His discharge was triggered by the County's judgment that his
actions concerning a homeless young man who was a patient at the
Center in early February of 2000 were inappropriate. Specifically,
he was accused of refusing to let the patient's mother have contact
with him, of persisting in seeking a blood test, including through
coercion, after being told he had no right to secure one against
the patient's wishes, with escalating a confrontation with the
patient, and with violating the patient's right to privacy and
humane treatment by removing the door to his room and all of the
furnishings from the room.

The patient, M.S., was involuntarily admitted from Door County
in the evening hours of February 7th. He was transported to the
Center by law enforcement personnel after he said he was afraid he
would hurt someone. The Grievant was on-duty at the time, and was
one of three staff members who did the admission for M.S. He found
him uncooperative, somewhat

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delusional and hostile to doctors. M.S. was not accompanied by any
medical records, but the Grievant noticed an insulin kit among his
belongings, and asked about it. M.S. told him he was diabetic, but
refused to provide any details. He told the Grievant that he took
insulin when he wanted, and in whatever dosage he wanted. M.S.
consented to a blood test, and it showed a blood sugar level of
278. The normal range is 80 to 120.

When the admission was completed, the Grievant telephoned the
patient's mother at her home in Deerbrook, about two and a half
hours from Green Bay. He made the call at about 9:00 p.m., for the
purpose of securing additional information about the man's
condition. The substance of this conversation and one on the
following day are a matter of dispute. According to the Grievant,
on the 7th he told the woman her son had been admitted, and
confirmed the diabetes. When she asked if she could speak with her
son, he told her that her son was still very agitated, and that it
might not be a good idea, but that she was welcome to if she
wished. She agreed that it might be best to wait. She asked if
she could come down and see him, and he told her that visiting
hours were over, but she could come the next day. He also advised
her that her son would be seeing a doctor and a social worker in
the morning, and gave her the telephone number of the Social
Worker, Paula DuTour.

According to M.S.'s mother, the Grievant called her at about
9:00 p.m. on the 7th and told her that her son had been admitted to
the Mental Health Center, and that he was the nurse assigned to
him. He told her her son had been acting out, was violent and
aggressive, and might be suicidal. She asked to speak with her
son, but the Grievant said it was not a good idea, because he was
not in any shape to speak on the phone. She asked if she could
come to the Center to see him the next day, and the Grievant told
her "no." He explained that her son was schizophrenic, and was
having hallucinations, and that since the Center could not
guarantee her safety, there would be too much liability in allowing
her to visit. He told her that many people aged 18 to 22 were
schizophrenic, paranoid and suicidal, and asked if there was any
family history of mental illness. She asked him if the condition
might be insulin-related, and he said that he was trained to tell
the difference between medical conditions and mental conditions,
and that her son's condition had nothing to do with the diabetes.
He told her a doctor and a social worker would see her son the
following morning and that one of them would call her. He also
told her that, although she could not speak with her son, she
should call him if she had questions or needed information.

After the Grievant spoke with M.S.'s mother, Door County
authorities faxed in his medical records. The records showed,
among other things, a hospitalization the previous July for a
variety of ailments, including diabetic ketoacidosis. This is a
serious condition that can develop when diabetes goes untreated for
a period of time, and is marked by nausea, vomiting, lethargy,
rapid breathing, weakness, inappropriate behaviors and a fruity
odor to the patient's breath. When this condition develops it is
considered to be a medical emergency.

At 11:45 p.m. on the 7th, the patient refused to take insulin
from the medical staff, insisting that he would take it when he
wanted, and in the amount that he wanted. The

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Grievant told him could not prescribe his own dosage, and he became
upset, throwing papers about and yelling at the medical staff.
Thereafter, he went into his room, and stayed there all day
Tuesday, coming out only for lunch. He refused to meet with either
the doctor or the social worker. He also refused to allow anyone
to administer an Accuchek, the test of blood sugar levels, although
he did consent to a blood screen at 6:30 a.m. When the Grievant
came on duty that afternoon, he and a nursing assistant went to
M.S.'s room to ask if they could do a blood test. M.S. was very
abrupt with them. He refused the test, telling them "I don't need
this shit." At about 4:30 p.m., the Grievant spoke with his
supervisor, Bruce Anderson, about whether they could force him to
submit to an Accuchek, and Anderson said it could only be done
involuntarily if, in his judgment, the situation was life
threatening.

At 5:30 p.m. the Grievant summoned three male CNA's and
brought them to the patient's room, along with the Accuchek
machine. He told M.S. that he wanted to get a blood test, and that
he could do it by himself or he could have the nursing assistants
help. M.S. became very upset and picked a chair up, holding it
over his head. Pat Jefrey, the other unit RN who was at the
Nurses' Station, could observe what was going on through the video
monitoring system installed in the room. She called Bruce Anderson
to come to the unit because the Grievant was demanding a blood test
from M.S. Jefrey also called down the hall to the other personnel
to stop, and to get out of M.S.'s room, and told CNA Gerald
Holschuh to go down and tell them to get out of the patient's room.
The Grievant said Anderson had approved it, and Jefrey said she had
just spoken with Anderson. The CNA's and the Grievant left the
room as Anderson arrived on the unit. Anderson told the Grievant
to leave M.S. alone.

A few minutes later, the Grievant observed that the light in
M.S.'s room was off. Since there is no window in the room, use of
the video monitoring system requires that the light be on or the
door to the hall be open. The Grievant told M.S. he had to leave
the light on or the door open, whereupon M.S. slammed the door shut
and turned off the light. Over the next 45 minutes or so, the
Grievant and Gerald Holschuh each went to M.S.'s room twice to turn
the lights back on after M.S. turned them off. The final time, the
Grievant told M.S. that if he kept closing the door and turning off
the lights, he would have the door to the room removed. M.S. then
turned off the lights, and barricaded the door with his furniture.
The Grievant called the maintenance department and asked that the
door be removed. He also summoned six CNA's to accompany him into
the room.

Jefrey again called Anderson to report to the unit. One of
the CNA's retrieved a long metal bar with handholds on it that had
been specially fabricated to remove barricades. They slid the bar
under the door, shoved the furniture out of the way, and pushed
into the room. The maintenance man arrived as they were opening
the door, and Anderson arrived at about that same time. Anderson
nodded to the maintenance man that he could proceed, and he started
removing the door. The nursing staff entered the room holding a
mattress in front of them for protection, and M.S. grabbed a chair
and tossed it in their direction. The staff, including the
Grievant, started removing the furniture from the room, and the
Grievant asked

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Anderson to call the doctor and get a prescription for a sedative.
M.S. hid on the floor next to the bed. When all of rest of the
furniture was removed, the medical staff took the mattress off the
bed, and M.S. jumped up. The Grievant took him to the ground, and
he and several aides held him down and administered a sedative to
him. They placed a mattress on the floor and put him on it. Once
he settled down, they left him in the room. Meanwhile, the
maintenance man also removed the bathroom door.

While the confrontation was going on in M.S.'s room, the other
patients became very agitated. One of them told Jefrey they could
take the staff if they wanted because there were more of them than
there were of staff. After M.S. was subdued, Jefrey, Holschuh and
others spent some time calming the other patients.

At about 8:00 p.m., M.S.'s mother called the Grievant. He was
on break in the lunchroom, and asked her to call back in 30 minutes
or so. According to the Grievant, when she called back, he
explained that he could not discuss her son while he was in the
lunchroom, because of confidentiality concerns. He advised her
that her son had been violent earlier in the evening, and described
the barricading incident to her. She became very upset, and asked
if she could come down. He told her that visiting hours were over,
but that she would be welcome to come the next day.

Again, M.S.'s mother disputes the Grievant's version of the
conversation. She recalled that when they spoke, he told her her
son had become very violent and had been throwing furniture,
lunging at passers-by and had tried to attack the doctor and the
social worker. He described needing six aides to hold him down
while they sedated him, and two different medications to calm him
down. When she asked if she could see him, the Grievant told her
he was too violent, and that she should wait until a commitment
hearing on Thursday. He predicted that her son would be committed
for at least 30 days for treatment.

After the phone conversation with M.S.'s mother, at about 9:30
p.m., the Grievant told Jefrey he was going to go back and try once
again to get an Accuchek. He and an LPN entered the room and the
Grievant asked M.S. for his arm, but M.S. did not respond, and they
left without getting the Accuchek.

Early on the morning of the 9th, Director of Nursing Shirley
Gruender arrived on the unit. A nurse told her to look at M.S.'s
room, and Gruender observed that the door was removed and all of
the furniture was missing. She immediately ordered the maintenance
department to reinstall the doors and return the furniture.
Gruender reviewed the nursing notes from the nights before, and
spoke with the staff. She prepared a notice of investigation, and
had it served on the Grievant when he reported for work. He was
suspended with pay pending a fact-finding meeting at the end of the
week. Later that day, Social Worker Paul DuTour received a call
from M.S.'s mother, who described the conversation with the
Grievant. DuTour suggested she call Gruender. M.S.'s mother did
call Gruender, and told her that she was very distraught about the
Grievant's report of her son's violent behavior, since she had

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never observed that in him before. She also told Gruender that the
Grievant had told her she could not speak to or visit her son.
Gruender checked the nursing notes, and found that neither call had
been charted in the notes.

Gruender, Hospital Administrator Earlene Ronk and
representatives of the Human Resources Department interviewed the
personnel who were on duty during the incidents with M.S. The
Grievant told Gruender that it was Pat Jefrey who had suggested
that he remove the door to M.S.'s room, and he repeated this to
Ronk. At the conclusion of the investigation, Gruender recommended
that Anderson be reprimanded for not halting the removal of the
door, and that the Grievant be terminated for his conduct. On
March 17th, Ronk served the Grievant with a letter of termination,
setting forth the Center's view of events:

. . .

On Monday, February 7, 2000 a 21-year-old male client was
admitted to Brown County Mental Health Center. You document that
the client's thought process was paranoid and his behavior and
attitude during the interview was shy/withdrawn,
guarded/suspicious, defensive, angry and fearful.

You called the client's mother at 8:50 PM
to let her know that
her son was safe. When the client's mother asked if she could
speak to her son you admit that you told her that her son was on
72-hour hold and that he was on General Suicide Precautions and
that it was best that no one talk to him. A complaint was received
from the client's mother stating that when she asked if she could
come down and see her son, you told her that she wouldn't be able
to see her son. Although you deny that you did not tell her she
wouldn't be able to see her son, there is no documentation in the
medical record to substantiate your conversation with her. This is
in violation of HSF 94.20 "The right to make and receive telephone
calls [sic] and HFS 94.21 "The right to receive visitors each day".

On Tuesday, February 8, 2000 at 4:30 PM
you went to the
client's room to get an accu-chek. When the client refused, you
called the House Manager and asked him what the legalities/MHC
policies were regarding getting an accu-chek from a client who
refuses. The House Manager told you that you could get a blood
sugar against the client's will only if it were critical and the
client's life and safety were in jeopardy. Although it was not a
medical emergency and you admit that a RN and LPN told you that the
client has the right to refuse, you said that you felt you should
push it. At 5:30 PM you called several staff to accompany you to
the client's room where you stated "you have the choice of agreeing
to an accu-chek or I'll have these guys help me". This show of
force agitated the client to the point of grabbing a chair and
putting it over his head

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and threatened to throw it at staff. This jeopardized the
client and staff's safety. This is in violation of HFS 94.09 "The
right to refuse medications and any other treatment unless ordered
by the court. [sic]

The client was fearful and angry and wanted
to be left alone so
he shut the light off and he shut the door. You threatened that
you would remove the door if he didn't keep the light on or open
the door. This was unnecessary because there are 15-minute checks
done by CNA's to monitor clients who are on GSP and it caused the
client to barricade his room. You called maintenance to have the
client's doors removed. After entry was gained to the client's
room, you directed the staff to remove the furniture and the client
was restrained until doctor's orders were received to sedate him.
This escalated other clients on the Unit who were afraid, and
threaten [sic] the staff with violence. This is in violation of
"Clients Rights [sic] and in violation of HSF 94.24 "The right to
a humane psychological and physical environment, including
reasonable privacy".

The client's mother called you at
approximately 7:15 PM and you
told her about the incident. She requested to speak to her son but
you told her that he was sedated and you didn't want to go to his
room. The client's mother said that she could be there the next
day by mid-afternoon. You told her that because of the attack you
couldn't allow her to visit because the County couldn't take the
liability or responsibility of her getting hurt. Although you deny
making that statement and state that the client refused to speak to
his mother, there is no documentation in the client's medical
record to substantiate your conversation with the client's mother
and that the client refused to speak to his mother. The client's
mother spoke to her son the next day and the client denied not
wanting to speak to his mother. This violates HFS 94.20 "The right
to make and receive telephone calls" and HFS 94.21 "The right to
receive visitors each day".

Conclusion: You
have been oriented and trained in the Brown
County Mental Health Center's policies on "Client Rights".

Our investigation leads to the conclusion
that there was a
deliberate violation and disregard for the client's rights, and the
client's mental and emotional needs. You used poor judgment and
decision making by failing to respond appropriately to an
escalating emergency situation and you failed to provide a safe
environment for the client and staff by placing them at risk
unnecessarily. There was no documentation in the client's medical
record to substantiate that you did not refuse the client's
telephone and visitation rights. The client rights violated were
HFS 94.09 "The right to refuse medications and any other treatment
unless ordered by the court", HFS 94.20 "The right to make and
receive telephone calls", HFS 94.21 "The right to receive visitors
each day", HFS 94.24 "The right to a humane psychological and
physical environment, including reasonable privacy."

Because of these violations, the County
must terminate your
employment effective today, March 17, 2000.

. . .

The instant grievance was filed, protesting the termination.
It was not resolved in the lower steps of the grievance procedure,
and was referred to arbitration. In addition to the facts recited
above, the Grievant testified at the arbitration hearing that he
never told M.S.'s mother that she could not speak to her son or
visit her son. He expressed the opinion that she was a gold digger
who was hoping for some financial settlement from the County, and
noted that she never did come to the Center to see her son, even
after DuTour and Gruender told her that she could. He also
expressed the opinion that M.S. was afraid to tell his mother that
he had specifically asked not to speak to her. He agreed that he
had not charted the phone calls with the mother, but said he did
send detailed notes of them to Paula DuTour. He remarked that many
things were not charted and that there were many holes in the
charts.

The Grievant acknowledged that he was persistent in seeking an
Accuchek from M.S., but asserted that he was simply concerned about
his medical condition. M.S. had a history of ketoacidosis, had
elevated blood sugar levels and was not taking insulin. He was not
being cooperative with staff, the nursing notes did not indicate
that other staff had been trying to observe him for any symptoms,
and the Grievant had not been able to closely observe him for signs
of ketoacidosis. Moreover, the doctor's order from the time of
admission called for Accucheks three times per day. Given all of
this, the Grievant felt he had to keep asking for the test, in
hopes that M.S. would consent. The Grievant denied that he had the
three aides accompany him into the room in order to intimidate M.S.
into giving a blood sample, though he observed that the difference
between coercion and aggressive patient care could be a fine line.
He admitted knowing that the patient normally had the right to
refuse tests and procedures, but recalled that Anderson had told
him it was up to him to determine whether M.S.'s life might be in
danger. His remark to the patient that the three CNA's would help
get the Accuchek was not a threat. He was merely concerned that
M.S. might be uncomfortable with him, and thought he might prefer
to have one of the others administer the test.

The Grievant testified that the closing of the door and the
turning off of the light in M.S.'s room were interfering with the
staff's observation of him as part of the general suicide
precautions. While he knew the patient just wanted to be left
alone, he could not permit that

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desire to trump his duty to provide care. He agreed that the
suicide protocol only required direct observations every 15
minutes, but said that Pat Jefrey was adamant that the light remain
on or the door remain open. When M.S. refused to comply with his
requests, it was Jefrey who told him he should have the door
removed from the room. He called down for the maintenance man to
remove the door, but did so knowing that Bruce Anderson would be
there in plenty of time to give the final approval for it. As for
the removal of the furniture, the Grievant did not order this. The
aides started doing it as soon as they entered the room, and he
simply assumed that this was standard operating procedure whenever
a barricade was removed. Likewise, he did not order the removal of
the bathroom door, and had no idea why it was taken off. At the
time he asked for the removal of the door to the room, he did not
know that the staff had a metal bar available to move barricades,
and he thought removing the door was the only way to insure regular
observations of M.S.

Patricia Jefrey testified that she was present when Anderson
told the Grievant he could not force M.S. to submit to an Accuchek
and that when she subsequently saw him go into the room with three
aides, she called Anderson because she knew he was wrong. She also
warned the aides and the Grievant that the patient had a right to
refuse the Accuchek. Jefrey said that she never told the Grievant
to remove the door to M.S.'s room, and that she had never ordered
any doors removed from any patient's room. She agreed that the
video camera would not be useful if there was no light, but said
that the general suicide precautions required a direct visual check
anyway, so that the video camera was more a convenience than a
critical part of the monitoring.

Additional facts, as necessary, are set forth below.

The Position of the County ­ Initial
Brief

The County takes the position that the Grievant was terminated
for just cause. The Grievant took it upon himself to isolate
patient M.S. from his family, and to insist on a course of medical
tests that the patient did not want and had a right to refuse.
When the patient's mother sought to speak with him on the
telephone, the Grievant refused to put her calls through. When she
asked if she could visit him, he told her she should not because of
liability issues. This is utterly inconsistent with his statutory
right to receive phone calls and visitors.

In addition to isolating patient M.S., the Grievant elected to
insist on medical procedures that were not requested by doctors,
required by the patient medical condition, or desired by the
patient. Despite the fact that patients have the right to refuse
treatment, the Grievant insisted on obtaining an Accuchek test of
the patient's blood. He stooped to blatant coercion, and in so
doing, escalated a situation to the detriment of his safety, the
safety of other staff, and the safety of the patient. After the
patient exercised his right to refuse the test, the Grievant had a
group of CNA's gather in his room, and told him that he could
either agree to the test or the CNA's would help him get one. This
is clearly a threat of force, and an immediate confrontation was
avoided only when RN Pat Jefrey and Nurse Manager Bruce Anderson
told the Grievant to leave the patient alone.

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The Grievant refused to leave the patient alone, and instead
almost immediately confronted him about his desire to turn his
light off. The need to have the light on existed only in the
Grievant's mind, since the patient could be adequately monitored
without leaving his room light burning. This unnecessary
confrontation was caused solely by the Grievant's desire to assert
his power and authority over the patient. Predictably, it led to
violence, including an injury to one of the CNA's who were summoned
to aid the Grievant when the patient slammed the door on him and
the Grievant forced his way into the room. After this, despite
having been told in no uncertain terms to leave him alone, and
knowing that the patient was violently opposed to any blood test,
the Grievant went a third time to try to obtain the Accuchek. This
course of action demonstrated a persistent refusal to honor the
patient's right to decline treatment, as well as violating his
right to privacy and his right to humane treatment. The Grievant's
actions, taken as a whole, were grossly inconsistent with even the
minimum required standards of nursing practice. Afterwards, he
refused to take responsibility for any of his actions, variously
blaming Anderson, Jefrey and the patient. The inappropriateness of
his actions is compounded by his inability to recognize or admit
that he did anything wrong.

Faced with a short term employee who was insensitive, even
hostile, to the statutory rights of a patient, who took it upon
himself to violate those rights in numerous ways, and who then lied
to investigators and denied responsibility for his actions, the
County had not only the right but the obligation to take action.
The decision to terminate the Grievant was amply supported by just
cause, and accordingly, the Arbitrator should deny the grievance.

The Position of the Union ­ Initial
Brief

The Union takes the position that the Grievant was not
terminated for just cause, and that he must be reinstated and made
whole. At the outset, the Union observes that the County has the
burden of proving these allegations by clear and convincing
evidence, since they imposed the most severe sanction available and
accused the Grievant of behavior that carries with it a serious
professional stigma. The evidence here cannot meet that standard,
nor even the lower "preponderance of the evidence" standard used
for lesser forms of discipline.

In order to uphold the County's actions, the Arbitrator must
determine that (1) the Grievant is guilty of the conduct charged
and (2) that the penalty is appropriate to the conduct. Neither
conclusion is possible in this case. There is simply no evidence
that the Grievant prevented or even interfered with the patient's
right to have visitors or phone calls. The patient's rights
include the right to refuse outside contacts, and the patient told
the Grievant he did not wish to talk to anyone. Indeed, in the
initial evaluation with the social worker and physician, two days
after he was admitted, he continued to say he did not want his
mother contacted. Had the Grievant put through the mother's phone
calls in the face of the patient's express wish to be left alone,
he would have violated his rights.

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The allegation that he refused to let the mother visit the
patient is likewise not proved. The Grievant admitted telling the
mother that she should not drive down to Green Bay when she could
not possibly get there before visiting hours ended, but that is
simple common sense. Looking back, through the prism of her dismay
at her son's condition, perhaps feeling guilt at not visiting her
son at all during his stay, the mother seeks someone to blame, and
has settled on the Grievant. However upset she may have been,
however, that cannot translate into misconduct by the Grievant.

Neither can the Grievant's treatment of M.S. be grounds for
discipline. He readily admits seeking to obtain an Accuchek of
this diabetic patient's blood. He did so because he was concerned
about his medical condition and his history of not regulating his
blood sugar levels. He also admits using every means available to
persuade M.S. to consent to an Accuchek. The fact remains,
however, that no one ever forced M.S. to have an Accuchek and no
Accuchek was ever obtained by the Grievant. It simply not true
that M.S. was forced to undergo any medical procedure, treatment or
test against his will.

The Grievant concedes that he had the patient's room door
removed, but he did so out of sound medical concerns. M.S. was on
general suicide precautions, and had an uncertain medical
condition. He refused to leave his light on so that he could be
monitored by camera, and he barricaded his door so that he could
not be monitored by direct observation. Removal of the door was
the option he selected. It is worthwhile noting that the
Grievant's supervisor, Bruce Anderson, observed the removal of the
door and allowed it to proceed. Indeed, he gave the maintenance
man the go-ahead to remove the door, and is listed on the work
request form as the person who asked that the door be removed. The
door remained off its hinges until the following day. Anderson
received a verbal reprimand for giving this order. The Grievant
was terminated. If the removal of the door was so clearly wrong,
how can the disparity in penalty in this case be explained?

The Grievant acknowledged at the arbitration hearing that he
could have handled this situation differently, but the issue here
is not whether he made the best choices available. The issue is
whether the choices he made constituted dischargeable misconduct.
Plainly they did not, and he should, therefore, be reinstated and
made whole for his losses.

The Position of the County ­ Reply
Brief

The County points out that the Union's brief essentially
admits misconduct. The Union concedes that the Grievant engaged in
a show of force to get the patient to agree to an Accuchek. The
other phrasing for this would be coercion. The Union concedes that
the Grievant went back a third time to get consent for an Accuchek
after the patient was sedated. Trying to get informed and
voluntary consent to a procedure from a sedated patient is plainly
a bad faith circumvention of the patient's rights. The Union
admits that it was the Grievant who called maintenance and ordered
the patient's door removed. Granting that Anderson shared in

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the blame for not stopping this, it was the Grievant who initiated
the action. The County notes that Anderson admitted his mistake,
admitted he was wrong, and learned from the discipline he received.
This stands in stark contrast to the Grievant, who continues to
believe there is nothing wrong with what he did, and continues to
point blame at everyone else, without acknowledging any fault
himself.

The Union also concedes that the Grievant failed to chart his
telephone conversations with the patient's mother. This goes
beyond a mere procedural error. In the course of the first call,
he obtained medical information that would have been important for
doctors and other nurses to know. More significantly, his failure
to chart the calls reflects his understanding that he was doing
something wrong in the course of the calls. It is a reasonable
inference that he did not chart them because he wanted no record of
the contacts. He wanted no record because he understood that he
was exceeding his authority in denying the patient's mother access
to her son. The Union's attempt to compare this with Gruender's
failure to chart her conversations with the patient's mother is a
false analogy. Her calls were unrelated to patient care and she
was not providing care to the patient. Instead, the calls were
investigative inquiries, following up on the mother's inquiries.
There was no reason to chart them.

The Union also tries to suggest that the nursing assistants
saw nothing wrong with the Grievant's decision to display force to
the patient, and that the assistants, unbidden by the Grievant,
decided on their own to remove the furniture from the patient's
room. A simple review of their testimony shows that they were
uneasy about his orders, and that they were acting under his
direction and control when the furniture was removed.

The Grievant had sufficient training and experience to know
that what he was doing was wrong. He concedes that he was fully
aware of the rights of a committed patient. His actions toward
M.S. were undertaken in conscious disregard of patient rights and
established standards of care. No amount of retraining or
corrective discipline will insure that he does not again mistreat
the patients under his care. The County is entitled to be rid of
him, and the grievance should be denied.

The Position of the Union - Reply
Brief

The Union reiterates its basic point ­ that the door that was
removed was removed with the approval of the Grievant's supervisor,
and that every action he undertook was in pursuit of the doctor's
standing orders. It was the doctor, not the Grievant, who ordered
that an Accuchek be taken three times a day. It was the doctor,
not the Grievant, who ordered that the patient be directly observed
every fifteen minutes as a precaution against suicide. The
Grievant was persistent in seeking the Accuchek because he knew the
patient was diabetic, knew his sugar levels were elevated, and knew
he had not had insulin. The Grievant was vigilant in seeking to
observe the patient, despite the patient's efforts to block
observations,

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because he knew he was a suicide risk. Perhaps he used poor
judgment in asking that the door to the room be removed, and
perhaps he used poor judgment in gathering the nursing assistants
for a show of force. However, these actions were undertaken to
insure the welfare of the patient, and misguided zeal is not the
same as misconduct.

The County errs in crediting the patient's mother over the
Grievant. There was no reason at all for the Grievant to deny the
patient's mother access to him. He did discourage her from coming
to the Center late at night, after visiting hours, because such a
trip would have been fruitless. However, he also said she was free
to come during the day. He shielded the patient from the initial
calls she made because he had said he did not want to speak to
anyone, including his mother. He made this request when he was
admitted, and again two days later, when he spoke with the Social
Worker, Paula DuTour. Just as the patient has the right to make
calls, he has the right to refuse to take calls, and the Grievant
should not be disciplined for respecting that right.

The County alleges that the Grievant conducted himself as if
there were a medical emergency, when in fact there was no
emergency. Hindsight is always 20/20. The pertinent question is
what the Grievant knew at the time. He knew the patient was
diabetic, with high sugar levels in his blood, no recent medication
and a history of ketoacidosis, a very dangerous condition. He knew
he was delusional, and was feeling and seeing a "presence" that
others could not sense. Again, perhaps his response was more
aggressive than the situation required, but the Grievant genuinely
believed that a critical problem, if not an actual emergency, was
in the offing. The penalty for misjudging a situation should be
correction and retraining. The only purpose served by a discharge
is to punish the Grievant. He may deserve some sanction here, but
the Arbitrator should understand that the County's response is a
gross overreaction.

DISCUSSION

The Grievant was employed for seven months as an RN at the
Center before being discharged. The discharge was based on the
County's conclusion that he had (1) violated patient M.S.'s right
to receive calls and visitors by telling M.S.'s mother she could
not speak to or see her son; (2) violated charting procedures by
not making a record of his telephone conversations with the
patient's mother; (3) violated the patient's right to refuse
treatment by trying to coerce him into having an Accuchek; (4)
violated professional standards by escalating a confrontation with
the patient; and (5) violated the patient's rights to humane
treatment and privacy by having the doors and the furniture removed
from his room. The Grievant admits having failed to chart the
conversations with the patient's mother, and admits some failures
of judgment in the other instances, but generally denies the
charges.

A.The Telephone Conversations With the Patient's Mother

The Grievant completely denies M.S.'s mother's claim that he
told her she could not see or speak to her son. While he cannot
explain her claim, he speculates that she made it in

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hopes of receiving some financial settlement from the County. This
is certainly a possibility, but there is no evidence of any legal
claims or settlements arising out of M.S.'s stay at the Center, and
the mother made this charge to both DuTour and Gruender while her
son was still at the Center, and before she knew the details of the
Grievant's other problems with him. If this was a scheme, it was
a peculiar one.

The Union suggests that the mother made this allegation
because she felt guilt at not having seen her son while he was at
the Center, or for many months before that. The connection between
that and this allegation is not clear, but it is clear that she
called her son several times after DuTour and Gruender told her she
could speak to him, which raises the question of why she did not
call him before then. One possible explanation is that she had
been told she could not.

The other side of the coin is that it is not completely
clear why the Grievant would have told the mother that she could
not see or visit her son. The County's theory is that he had a
desire to exercise authority and control over M.S., and that this
extended to controlling his contacts with the outside world. While
this is every bit as speculative as the Grievant's theory and the
Union's theory, as discussed below, it is consistent with the
Grievant's approach to other aspects of M.S.'s care during his
stay.

At base, this allegation comes down to a credibility
judgment. Neither story is impossible. As I conclude that the
Grievant lied about several other material points in his testimony,
I find that it is more likely than not that he is also lying about
his conversations with M.S.'s mother.

B.The Show of Force

The Grievant wanted M.S. to submit to an Accuchek, and M.S.
would not. The Grievant felt strongly enough about this to go to
Bruce Anderson, and ask if he could force M.S. to have the test.
Anderson told him he could only do that if the patient's life was
in danger. Almost immediately after this, the Grievant gathered
together three male nursing assistants and took them to M.S.'s room
with him. The nursing assistants generally agreed that the
Grievant told M.S. that he could submit to the Accuchek or the
nursing assistants "could help." At the hearing, he explained that
this was not a threat or an effort at coercion, but merely an offer
to have someone else get the blood sample if the patient was not
comfortable with him. This explanation strains credulity to the
breaking point. Even the Grievant was not able to completely
maintain this story throughout his testimony, admitting on re-cross
examination that it might have appeared coercive to the patient,
and that there was a fine line between coercion and helping a
patient. No reasonable person could look at the Grievant's actions
here as something other than an attempt to coerce M.S. to give up
his right to refuse the Accuchek.

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In his defense, the Grievant cites his concern that M.S. might
develop serious complications from his diabetes, and his conviction
that an Accuchek had to be taken to monitor his sugar levels. The
balance of the testimony of medical professionals in this case ­
including doctors, registered nurses, licensed practical nurses,
and aides ­ is that they saw nothing in M.S.'s condition that
indicated any serious physical illness, and no symptoms of diabetic
acidosis. Neither could the Grievant actually identify anything
specific that indicated this condition, although he explained that
he was never able to examine M.S. closely during the day and did
not believe that anyone else had either.

The Grievant, for whatever reason, was determined to have his
way in obtaining an Accuchek from M.S., despite being told that
M.S. had every right to refuse, despite the fact that M.S.
adamantly refused to agree to the test, and despite the fact that
there was no urgent medical necessity for the test. His last line
of defense on this allegation is that he never actually took an
Accuchek from M.S. against his will. That is true, although it is
also true that one reason for that is that M.S. became so upset
that he brandished a chair at the staff members. While they were
regrouping, Jefrey called Anderson to the unit, and both Jefrey and
Anderson ordered him to leave the patient alone. Whether they
would have taken the Accuchek against his will but for the
intervention of other nursing staff is a matter of speculation, but
it is absolutely clear that the Grievant was determined not to let
M.S.'s demand to be left alone stand in the way of his desire to
have the test taken. This course of action not only ignored the
patient's legal right to refuse treatment, it served to provoke
him. M.S. had already expressed a deep mistrust of medical
personnel. The show of force prompted him to threaten staff with
a chair, and shortly afterwards, to barricade himself in his room.

As the Union points out in its brief, hindsight is always
20/20, and it is not fair to judge a course of action solely on the
basis of outcomes. Here, however, the Grievant was told by two
more experienced RN's ­ Anderson and Jefrey ­ to leave M.S. alone
and respect his decision not to have the Accuchek. Given the
patient's mistrust of medical personnel and the warnings of other
staff, the confrontation over the Accuchek and the subsequent
barricading of the door were not remote possibilities that no one
should have contemplated. The essence of a show of force is a
physical challenge ­ the threat of direct action if the patient
does not acquiesce. Anyone who initiates a show of force must
necessarily contemplate physical resistance as a likely response.
Thus, it is not just hindsight to say that there was a very good
chance that the patient would respond violently to the Grievant's
chosen course of action.

C.The Barricading and Removal of the Door

Immediately after the show of force, the patient started
turning off his light and closing his door. This prevented the
nursing staff from observing him on the video monitor. The
protocol for general suicide precautions calls for a direct
physical observation every 15 minutes. The video monitor is an
additional precaution, but it is not required.

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Notwithstanding this, the Grievant and one of the aides went to the
patient's room four times and turned the lights back on. On the
last of these occasions, the Grievant told him he would have the
door removed if he persisted in closing it, and the patient then
slammed the door in the Grievant's face, and barricaded it with
furniture. In response to this, the Grievant called maintenance
and asked that the door be removed. He also assembled a team of
six male aides to assist him in removing the barricade and subduing
the patient.

The Grievant explained that his persistence in demanding
that the light be left on and the door be open resulted from Pat
Jefrey's instructions. According to him, Jefrey was adamant that
the light be left on, and told him that he should remove the door
to the patient's room. No one else heard Jefrey say this, and
Jefrey denies it. I find it very unlikely that Jefrey gave these
instructions. Minutes before this, Jefrey had intervened in the
confrontation in the patient's room, ordering the aides to get out
and telling them to leave M.S. alone. This is inconsistent with
the notion that she would have followed up on this by telling the
Grievant to start provoking M.S. again, particularly since the
video monitoring was not a required part of the suicide
precautions, and there was no reason to insist that the lights be
on or the door be open. As was pointed out in testimony at the
hearing, the patient was not restricted to his room, and was free
to go into the halls and the common areas, beyond the range of the
video camera. Moreover, once the Grievant did call for the door to
be removed, Jefrey called Anderson to the unit. If the removal of
the door was her idea, it would not make a great deal of sense for
her to summon Anderson in response. Instead, I conclude that the
removal of the door was initiated by the Grievant on his own, and
was another part of the test of wills between him and this patient.

It is true, as the Union points out, that Anderson
ultimately okayed the removal of the door when he arrived on the
unit, and did nothing to stop the removal of the furniture from the
patient's room. It is also true, though, that by the time Anderson
appeared on the unit, the confrontation was already fully realized.
Anderson was not the one who provoked the patient and was not the
one who prompted the patient to barricade the door. He was not the
one who called maintenance to come to remove the door. He erred in
supporting the Grievant's chosen course of action, but that does
not make him primarily or even equally at fault. The most
egregious aspect of the events of February 8th was not the removal
of the door and furniture, but the Grievant's election of a course
of behavior that almost inevitably would lead to a violent response
by this patient. Whatever the reason for his need to assert his
will over this patient, in pursuing it he trampled on the patient's
right to make his own decisions. This had the effect of not only
escalating the patient's behaviors, but inflaming other patients
and putting them and staff members at risk of harm.

D.Conclusion on the Merits of the Charges

In conclusion, on the substance of the charges against
the Grievant, I find that he is not telling the truth, and that he
did in fact tell M.S.'s mother that she could not speak to or visit
her son. This violated the patient's right to have calls and
visitors. I also find that he gathered three aides together for
the purpose of coercing M.S. into allowing an Accuchek, using an

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implied threat of force, in violation of his right to refuse
treatment. I also find that he was the moving party in having the
furniture and doors removed from M.S.'s room, and was primarily
responsible for the resulting violation of the patient's right to
privacy and humane treatment. He concedes that he is familiar with
the rights of the patients in these regards, and the fact that he
did not testify credibly on these incidents indicates that he
understood that his actions were not appropriate. All of these
actions provide cause for some measure of discipline, and the
remaining issue is whether discharge is an inappropriate penalty
under the circumstances. 1/

1/ It is also apparent that
he failed to chart his telephone
conversations with the patient's mother, which is a violation of
procedures. However, the failure to chart these conversations
would not, by itself, trigger substantial discipline and I have not
weighed this charge in evaluating the appropriateness of the
penalty.

E.The Appropriateness of the Penalty

The Union concedes that the Grievant may have used poor
judgment in his dealings with M.S., but argues that progressive
discipline is the most appropriate vehicle for correcting errors in
judgment. The Union also points out that Anderson was merely
reprimanded, even though he was the one who approved the removal of
the doors from the patient's room. Both of these points have
validity, but on this record I cannot find them sufficient to
render the choice of discharge an abuse of discretion by the
County.

Addressing first the issue of the penalty imposed on
Bruce Anderson, a verbal reprimand is far more lenient than the
discharge suffered by the Grievant. However, Anderson has
appreciably more service with the County than does the Grievant.
He also had substantially less involvement in the overall sequence
of events. He played no part in denying M.S. access to his mother.
He acted appropriately in telling the Grievant he could not compel
M.S. to submit to an Accuchek, and then ordering the Grievant to
leave M.S. alone after the show of force. He played no part in
escalating the confrontation with M.S., and as discussed above,
appeared on the scene only after the bulk of the damage was done.
In addition to his lower degree of culpability, management was
entitled to give weight to his forthrightness in admitting his
actions and taking responsibility for them. Unlike the Grievant,
who blamed others for virtually every problem he had with M.S.,
Anderson conceded his role and accepted that he was wrong. Given
all of this, the decision to impose a relatively light sanction on
Anderson while imposing a heavy sanction on the Grievant was not
arbitrary.

As for the argument that progressive discipline is the
appropriate course in work performance cases, this is true, as far
as it goes. However, the Grievant's single-minded pursuit of
control over M.S. has elements that go beyond mere lapses in
judgment. He knew that M.S.'s mother had the right to speak to her
son and to visit him. The fact that he denied telling her she
could not speak to him demonstrates that he knew he was wrong. He
knew that M.S. had the right to refuse treatment. He clearly
believed that it was a mistake to let M.S.

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refuse the Accuchek, but this was not because he somehow
misunderstood the patient's rights. He had been directly told that
he could not force the issue a few minutes before he tried to
coerce M.S. into giving up his rights through a show of force.
Having been faced down by Jefrey and Anderson in that effort, he
then made an issue of having the lights on in M.S.'s room,
ultimately threatening him with the removal of the door, and then
following through when M.S. resisted him. The overall impression
from the sequence of events is that the Grievant was unwilling to
let M.S. prevail over him in a contest of wills, even though M.S.
was within his rights in the choices he was making. This goes
beyond poor judgment.

In addition to the fact that there were several distinct
violations of the patient's rights, and the fact that the Grievant
seemed to be deliberately provoking trouble with the patient, the
County is entitled to weigh his response to management when he was
called to account for his actions. Just as Anderson was given
credit for not evading responsibility, the Grievant is entitled to
a harsher disciplinary response for having denied any
responsibility. As late as the arbitration hearing, he was still
insisting that he brought the three aides with him to the room, not
as a means of coercing M.S., but as either a safety measure against
a patient who was not particularly violent, or as a means of giving
M.S. a choice among the medical personnel for the taking of the
blood sample. Likewise, he continued to insist, against the weight
of the evidence, that it was Jefrey who was really behind the
removal of the doors. And, as discussed above, he continued to
deny the substance of his conversations with M.S.'s mother. In the
face of these denials of responsibility from an employee with only
seven months of service, management could reasonably have concluded
that progressive discipline would not be a sufficient response.

In concluding that the Grievant was appropriately
discharged, I would stress that I do not believe that he had some
dark motives for his conduct. His pursuit of the Accuchek was
almost certainly the result of his belief that it would be in
M.S.'s best interests to have the test. The lack of an evil motive
does not excuse his blatant disregard for the patient's rights, nor
the very poor decision to ignore the orders to leave M.S. alone,
and instead escalate the confrontation with him to the point where
a violent confrontation was almost certain to result.

On the basis of the foregoing, and the record as a whole,
I have made the following

AWARD

The County had just cause to terminate the Grievant. The
grievance is denied.